' SH. NAJAM-UL-HASSAN, J.---Manzoor Hussain son of Allah Ditta got registered case F.I.R. No, 278 dated 19-6-2000 under sections 302/324/337-F(iii)/337-A(ii)/148/149, P.P.C. At Police Station Saddar Renala Khurd, District Okara regarding an occurrence which took place on the same day at 9-00 a.m. In which his uncle Abdul. Razaq succumbed to injuries whereas six others received injuries at the hands of the accused persons.
2. Briefly stated facts in the F.I.R. (Exh.PI/1) are that on 19-6-2000, Manzoor Hussain, complainant along with his father Allah Ditta and uncle Abdul Razaq was grazing their cattle in the fields when they were attacked by Muhammad Yasin, Ghulam Muhammad, Noor Muhammad alias Shera, Afzal, Jaffar, Mohsin, Abdul Rauf and Fayyaz Ahmad, accused all armed with sotas except Abdul Rauf who was armed with hatchet. Giving minute details in the F.I.R. Manzoor Hussain, complainant alleged that the accused persons gave Sota blows to Allah Ditta and Abdul Razzaq. The complainant further stated that in the meanwhile Noor Muhammad, Muhammad Yousaf, Karam Ali, Bashir Ahmad and Liaqat Ali also reached there upon which they all except Bashir Ahmad were also belaboured by the accused party with sota blows. (minute details of their injuries were also given in the F.I.R.). The complainant further stated that after a while Abdul Razaq son of Noor Muhammad and Muhammad Amin son of Bashir Ahmad along with many other people also reached there and got the complainant party rescued from clutches of the accused party. The complainant stated that the injured persons were taken to the hospital at Renala Khurd for medical treatment and because of serious injuries, Abdul Razaq was referred by the doctor to the General Hospital Lahore but soon after he died in the said hospital. The complainant also stated motive about the occurrence to the effect that Muhammad Yasin, accused had stolen an ox of one Manzoor Ahmad son of Tharaj and in lieu thereof his two buffaloes had been kept by Allah Ditta, father of the complainant which were being, demanded back by Yasin accused and on refusal by father of the complainant the present occurrence had taken place. The complainant also disclosed in the F.I.R. That the complainant party had also acted in self-defence as a' result of which some of the accused persons had received injuries.
3. The matter was investigated by the police and after completion of investigation all the above mentioned eight accused were challaned to Court to face trial.
4. At the commencement of trial, charge was framed against the accused persons on 19-2-2001 to which they pleaded not guilty and claimed to be tried.
5. At trial the prosecution produced Abbas Ali (P.W.1), Muhammad Yar (P.W.2), Manzoor Hussain, complainant (P.W.3), Allah Ditta (injured P.W.4), Karam Ali, (injured P.W.5), Muhammad Yousaf (injured P.W.6), Liaqat Ali (injured P.W.7), Muhammad Hanif (P.W.8), Khadim Hussain, (P.W.9), Muhammad Mukhtar Patwari (P.W.10), Abdul Hameed Sub-Inspector (P.W.11), Dr. Ghulam Hussain Alvi (P.W.12), Muhammad Abbas (P.W.13), Ashiq Ali Sub-Inspector (P.W.14) and Dr. Ateeq ur Rehman (P.W.15) to prove the charge against the accused persons.
6. At the close of prosecution evidence Muhammad Yasin and other accused of the F.I.R. Were examined by the learned trial Court under section 342, Cr.P.C. On 10-5-2003.
7. On 3-1-2001 Muhammad Yasin alias Dholo son of Agra, nominated accused of the above said case F.I.R. No, 278 of 2000 filed a private complaint from jail under sections 364/354/336/337-A(ii)/ 337L(ii)/337F(i)/148/149/342/202/217/220/221 and 466, P.P.C. In the Court of learned Illaqa Magistrate Renala Khurd, Distt. Okara against Manzoor Ahmad (complainant of the above said challan case), Allah Ditta, Noor Muhammad, Muhammad Yousaf, Liaqat Ali (injured P. Ws. Of the above said challan case), Abbas son of Basara, Abbas as son of Hamid (prosecution witnesses of above said challan case), Abual Hassan, Yasin son of Muhammad Razaq, Rafiq, Khalil, Abdul Razaq son of Noor Muhammad, Karam son of Munir Ahmad, Manzoor son of Tharaj and Riaz, along with Ashiq Ali and Abdul Majeed, Sub-Inspectors (investigators of above said challan case), Allah Ditta A.S.-I. And Dr. Attiq ur Rehman S.M.O. Civil Hospital Renala Khurd, Distt. Okara.
' Muhammad Yasin stated in the private complaint that on 19-6-2000 at about 8-30 a.m. He along with his daughters Mst. Azra and Mst. Perveen was harvesting his Berseen crop when Allah Ditta, accused (injured witness of the F.I.R./challan case) came there along with his buffaloes and sent them to the field of Yasin where he (Yasin) had sown paddy crop. Yasin, complainant alleged that upon being admonished, Allah Ditta hurled abuses to him and his daughters whereupon he gave 2/3 slaps to Allah Ditta who took it ill and went away while extending threats. After a while Allah Ditta along with Abbas son of Basara, Noor, Manzoor, Abu al Hassan, Yasin, Rafiq, Khalil, Abdul Razaq, Yousaf, Karam, Manzoor son of Tharaj, Liaqat, Riaz and Abbas all armed with Sotas came there upon which the complainant along with his daughters ran and took shelter in the Dhari of one Bashir Ahmad but the accused persons reached there and after breaking open the door took him out from the Dhari. He further alleged that Riaz accused wrapped Safa around his neck and started throttling him. Thereafter the accused persons took him towards the village but on the way his sons Muhammad Afzal and Muhammad Jaffar along with Yahya and Sultan confronted them and thereafter a fight ensued between the parties in which he along with his sons Muhammad Afzal and Jaffar received Sota blows. During this scuffle they acted in self-defence and the Allah Ditta party also received injuries.
8. The learned Addl. Sessions Judge, Okara summoned the accused persons of the private complaint and framed charge on them on 3-5-2003. The accused pleaded not guilty and claimed to be tried in the complaint case.
9. On 5-5-2001 the complainant withdrew his complaint to the extent of Ashiq Ali, Sub-Inspector, Abdul Majeed, Sub-Inspector, Allah Ditta, A.S.-I. And Dr. Attiq ur Rehman accused persons. To prove his case to the extent of remaining accused, Yasin complainant appeared as P.W.1 and produced his sons -Jaffar, P.W.2, Afzal, P.W.3 and Dr. Attiq ur Rehman as P. W.4 and closed his evidence on 3- 4-2004.
10. At the conclusion of prosecution evidence in the complaint case the learned trial Judge examined all the 14 accused persons, namely, Abbas son of Basara, Noor, Abual Hassan, Allah Ditta, Yousaf, Riaz, Karam, Rafiq, Khalil, Abdul Razaq, Liaqat, Abbas son of Hamid, Manzoor Ahmad son of Tharaj and Manzoor Ahmad son of Allah Ditta under section 342, Cr.P.C. It may be mentioned that .Yasin son of Abdul Razaq, accused of the private complaint died during pendency of the trial.
11. After holding two separate trials in which separate charges were framed, separate evidence was recorded and separate set of accused were examined under section 342, Cr.P.C., the learned trial Court vide consolidated judgment dated 22-7-2004 holding that the occurrence was not pre- planed and had ensued all of a sudden without any premeditation, acquitted Jaffar, accused of the challan case whereas convicted his co-accused Yasin alias Dholu, Ghulam Muhammad, Afzal, Mohsin, Abdul Rauf, Fayyaz, Noor Muhammad for different offences and sentenced them to different terms of imprisonment except Muhammad Yasin accused who was sentenced to death for the murder of Abdul Razaq. The learned trial Judge vide the same consolidated judgment acquitted Riaz, Karam, Abual Hassan, Manzoor son of Tharraj, Abbas son of Hamad, Khalil, Liaqat and Manzoor son of Allah Ditta, accused of the private complaint case whereas convicted their co- accused Abbas son of Basara, Noor son of Allah Ditta, Yousaf, Allah Ditta, Abdul Razaq son of Noor Muhammad, Rafiq to different penal provisions of law and sentenced them to different terms of imprisonment.
12. Muhammad Yasin, convict has filed Criminal Appeal No, 447-J of 2006 through jail challenging his conviction and sentence whereas the State has approached this Court by way of Murder Reference No, 507 of 2004 seeking confirmation of the sentence of death awarded to Muhammad Yasin, convict. From the remaining convicts of the challan case Muhammad Mohsin, Noor Muhammad and Fiaz Ahmad have also filed Criminal Appeal No,1346 of 2004. The convicts of the private complaint case, namely, Abbas son of Basara, Allah Ditta, Noor, Rafiq, Abdul Razaq and Yousaf have also preferred Criminal Appeal 1345 of 2004 challenging their conviction and sentences. All these matters are being disposed of together through this single judgment.
13. Learned counsel for the appellants at the very outset contended that the impugned consolidated judgment passed in two separate trials is not sustainable in the eye of law as such the conviction and sentences recorded against the appellants are liable to be set aside. The learned Deputy Prosecutor General appearing for the State was unable to controvert the above legal position but defended the consolidated judgment of the learned trial Court by arguing that since both the trials stemmed out of the same occurrence committed in the same transaction hence the learned trial Court was justified to deliver a consolidated judgment and in any case a separate short order has been written by the learned trial Court in the private complaint, therefore, the same was legally tenable. In the alternate he argued that the irregularity could be cured by remanding the case for re-writing of separate judgments.
14. We have heard the learned counsel for the parties on the point and have also gone through the relevant provisions of law. Since after hearing the learned counsel for the parties, we feel inclined to set aside the conviction and sentences of the appellants and remand the case for re-writing the judgment on the ground that the consolidated judgment of the learned trial Court suffers from infirmity, therefore, we need not set out the facts in details and enter in detailed discussion or enter upon merits of the case.
15. In order to appreciate the law point raised by the learned counsel for the appellants, we have minutely and carefully gone through the Criminal Procedure Code, 1898 as also the case-law laid down by the superior Courts on the point.
Although the word "judgment" has not been defined in the Criminal Procedure Code, 1898, however, as has been ordained by the superior Courts in its general import the word "judgment" is construed to be judicial determination or decision of a Court terminating judicial proceedings initiated in the matter. It means a judicial verdict deciding a case finally so far as the court seized of the case is concerned.
16. Section 366 of the Cr.P.C. Deals with mode of delivering judgment. It says:--
366. Mode of delivering judgment.---(1) The judgment in every trial any Criminal Court of original jurisdiction shall be pronounced, or the substance of such judgment shall be explained:--
(a) in open Court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders; and
(b) ................
(2) ................
(3) ................
(4) ................
Section 367, Cr.P C. Deals with the language and contents of a judgment. It reads as under:--
367. Language of judgment. Contents of judgment.---(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the Presiding Officer of the Court or from, the dictation of such presiding officer in the language of the Court, or in English; and shall contain the point or points for determination, the decision thereon; and the reasons for the decision; and shall be dated and signed by the Presiding Officer in open Court at the time of pronouncing it and where it is not written by the Presiding Officer with his own hand, every page of such judgment shall be signed by him.
(2) It shall specify the offence (if any) of which, and the section of the Pakistan Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced.
(3) Judgment in alternative. When the conviction is under the Pakistan Penal Code and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same and pass judgment in the alternative.
(4) .............
(5) ................
(6) ................
' A careful perusal of the above quoted two provisions of law would show that there must be a separate judgment in every trial and that the judgment must contain the points for determination, the decision thereon and the reasons for the decision.
17. In the present case there were two separate trials in which two sets of different accused were separately charge-sheeted and evidence of different sets of witnesses had been recorded. Hence there must have been two separate judgments. The contention of the learned Law Officer that in the complaint case they e was short order which could be considered as separate judgment is unfounded and fallacious one. As noted above a judgment is a judicial verdict deciding a case finally which should contain points for determination, discussion thereon and the reasons for decision and should specify the offence and section of law under which accused was convicted and punished. It is a conclusion which the Court makes of the trial initiated with cognizance of the offence followed by charge and the consequent judicial proceedings against an offender. It would not be out of place to mention at this juncture that cognizance is always taken of an offence and not of an occurrence. In one occurrence there may be more than one offences committed at one time (like the present case) and the Court should take cognizance of every offence and not only of the occurrence. Once cognizance is taken of the offence, the Court is obliged to decide the case by full-fledged trial or by exercising powers provided by the Code. Therefore, presumption that since the occurrence was same or that since the offence had been committed in the course of same transaction, as such there could have been a consolidated judgment is a wrong approach which is not permissible.
18. Section 233 of the Cr.P.C. Deals with the charge and trial. It provides that for every distinct offence there shall be a separate charge and every such charge shall be tried separately. However, there are certain exceptions to this general rule enumerated in sections 234, 235, 236 and 239 of the Code. It has been held by Full Bench of this Court in Khizer Hayat and 5 others v. The Commissioner, Sargodha Division and another (PLD 1965 (W.P). Lahore 349) that basic principle laid down in section 233 is that except in the cases mentioned in sections 234, 235, 236 and 239, there shall be a separate charge for every distinct offence of which any person is accused and that every such charge shall be tried separately, but two points are to be borne in mind in this connection that the general rule laid down in section 233 was enacted for the benefit of accused persons and not for that of the prosecution and the second is that it is of the utmost importance that the accused should not be exposed to the risk of conflicting decisions. Under the exceptions contained in sections 234, 235, 236 and 239 circumstances have been enumerated in which offences of the same kind, committed in different span of time within one year could be charged together or different offences could be tried in one trial or the persons who may be charged jointly.
Even these exceptions are optional and none of them is mandatory. Since none of these exceptions were attracted to the present case, as such the same cannot be applied to the present case. If the different accused had been charged separately and accordingly tried, there should not have been, a consolidated judgment as- discussed above.
19. Once we have come to the conclusion that the consolidated judgment could not have been written in two different trials, the next question would be that whether the impugned judgment is void and the illegality has vitiated the whole trials or it is only an irregularity which can be cured by sending the same to the learned trial Court for re-writing two separate judgments and further whether remanding the case to the learned trial Court for separate judgments would amount to review which is alien to the Cr.P.C. And if not in strict sensu to what extent and whether the learned trial Court should re-write separate judgments after hearing the parties or on the basis of evidence and material available on record only. Legal method of getting out of these difficulties can be gathered from section 537, Cr.P.C. Which is as under:
537. Finding or sentence when reversible by reason of error or omission in charge or other proceedings. ---Subject to the provisions hereinbefore, contained no finding, sentence order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account -
(a) of any error, omission or irregularity in the complaint, report by police officer under section 173, summons, warrant, charge, proclamations, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges, unless, such error, omission or irregularity has in fact occasioned a failure of justice.
Explanation.---In determining whether any omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
20. A careful perusal of this provision of law would show that a finding or sentence of a court of competent jurisdiction cannot be reversed or altered only on account of any error, omission or irregularity in the judgment. In our view the learned trial Court convicted the accused persons and passed sentences after framing separate charges, considering evidence of each trial separately and after separately examining the accused persons under section 342, Cr.P.C. Therefore, writing of consolidated judgment can by all means be said to be an irregularity only. Till the pronouncement of the judgment, no party had objected that the learned trial Court had committed any illegality in holding the trials, therefore, mere writing a consolidated judgment has not prejudiced the case of either party or has misled the accused as per section 233 or has occasioned the failure of justice as per section 537 Cr.P.C.
21. We have also fortified ourselves by the dictums laid down by the Hon'ble superior Courts on/touching the point in issue.
In NUR ELAHI V. THE STATE AND OTHERS (PLD 1966 SC 708) the matter related to two versions; one placed before the Court by the police through challan case and the other by way of Nur Ellahi through private complaint regarding the murder of one Mazafar Piracha and the Hon'ble Supreme Court held that the two versions should be taken up separately and the learned trial Court to take up the complaint case first for trial.
' In GHULAM HUSSAIN AND OTHERS V. THE STATE (1996 PCr.LJ 514) the accused was facing trial in six different cases registered against him. The learned trial Court recorded evidence in one case only and its carbon copies were placed on the record of other cases. The trials were vitiated on the ground that the evidence of one witness if adopted from one case into the file of other case without appearance of the witness and without his examination and cross-examination, it would amount to causing serious prejudice to the defence and also amount to an illegality which is not curable.
' In SHAHMAND AND 6 OTHERS V. THE STATE (1991 PCr.LJ 833) 13 accused were sent up for trial for causing murders of three persons under various sections of Pakistan Penal Code and charge was framed against them under section 148, P.P.C. However, some of them were not convicted under section 302/149, P.P.C. On three counts without any reason. The matter was remanded for retrial with the direction to the trial Court to determine the criminal liability of each accused qua each deceased and also to determine the legal sentence to be passed on each accused for each murder.
All these precedent cases show that where any illegality has been committed which is not cureable, re-trial has to be conducted but where mere irregularity has occurred the same is curable without adverting to whole re-trial.
22. The crux of our above discussions and conclusion is that by writing consolidated judgment by the learned trial Court in two separate trials was not a material illegality which could have vitiated the whole trials as such the same can be cured by re-writing two separate judgments in the said trials. Since the trials were independently held and none of the parties had objected on the basis of any illegality, hence by re-writing two separate judgments no failure of justice would be caused.
23. Consequently, the conviction and sentences of the appellants are set aside and the matter is remanded back to the learned' trial Court with a direction to re-write separate judgment of each trial in accordance with law after hearing the parties while relying on the same charge sheets, evidence of the parties in each trial and on the same statements of the accused under section 342, Cr.P.C. And other material of each case. In the meantime the appellants shall be treated as under trial prisoners. Some of the appellants are already on bail, they shall remain on bail till separate judgments are recorded by the learned trial Court. It is clarified that since the acquittal of co- accused of the appellants has not been challenged before us, hence the same has attained finality and the learned trial Court shall not in any manner disturb its finding already recorded in this respect. Since the matter relates to an occurrence which took place in the year 2000, therefore it should reach its logical conclusion within shortest possible time. The learned Trial Court is, therefore, directed to re-write judgments of both the trials within two months from the date of receipt of this judgment. The appellants would be at liberty to file appeals etc. Against their conviction and sentences recorded vide two separate judgments. The office is directed to immediately transmit record of these cases to the learned Sessions Judge, Okara who shall entrust the same to the learned trial Judge and if the learned trial Judge has by now been transferred, the learned Sessions Judge may re-write the judgments by himself or by some other competent learned Addl. Sessions Judge, as directed above.
24. Criminal Appeals No, 447-J of 2006, Criminal Appeal No. 1345 of 2004, Criminal Appeal No. 1346 of 2004 and Murder Reference No.507 of 2004 are disposed of in the above terms.